In certain circumstances, the right to participation goes beyond public debate and free elections to encapsulate a right to the effective participation of members of a community in decisions which directly affect them, including about policies and projects, such as evictions and the use of natural resources. Consultation is particularly called for with regard to decisions that affect minorities and indigenous peoples. Comprehensive entry:
Article 25(a) of the ICCPR provides that ‘[e]very citizen shall have the right … to take part in the conduct of public affairs …’. The HRC has observed that ‘public affairs’ in article 25 of the ICCPR includes the ‘formulation and implementation of policy at international, national, regional and local levels’.[1] Participation can be either direct or indirect through elected representatives. The HRC held in Marshall v Canada that ‘article 25(a) of the Covenant cannot be understood as meaning that any directly affected group, large or small, has the unconditional right to choose the modalities of participation in the conduct of public affairs.’[2] In Beydon v France, the applicants argued that despite numerous calls by parliamentary groups, individual senators, and non-governmental organizations at the time of the National Assembly debates on the ratification of the Rome Statute in February 2000 not to invoke [a clause excluding war crimes from the jurisdiction of the ICC], France did not take into account either the authors' objections or the widespread public opposition expressed both directly and through their elected representatives to the French declaration under article 124.[3] The HRC held that the applicants had failed to substantiate that their right to take part in the conduct of public affairs had been violated as they had participated in the public debate on the issue and acted through elected representatives.[4] In certain circumstances the right to participation goes beyond public debate and free elections to encapsulate a right to consultation. General Comment 23 of the HRC provides that positive legal measures are required to ensure the ‘effective participation of members of minority communities in decisions which affect them’.[5] (See *minorities –right to participate in decision-making*, *indigenous peoples – consultation*). The CESCR has held that ‘[a]lthough free and fair elections are a crucial component of the right to participate, they are not enough to ensure that those living in poverty enjoy the right to participate in key decisions affecting their lives.’[6] Consultation is an essential element with regard to *forced evictions*.[7] Consultation is particularly called for with regard to the use of natural resources. The CESCR has expressed deep concern over the fact that ‘natural resource extracting concessions have been granted to international companies without the full consent of the concerned communities’.[8] The HRC has noted that ‘the acceptability of measures that affect or interfere with the culturally significant economic activities of a minority depends on whether the members of the minority in question have had the opportunity to participate in the decision-making process in relation to these measures and whether they will continue to benefit from their traditional economy’.[9] The African Commission noted in a case against Nigeria that ‘in all dealings with the oil consortiums, the government of Nigeria did not involve the Ogoni communities in decisions that affected the development of the Ogoniland’.[10]
[1] HRC, General Comment 25 para 5. See also UN Declaration on the Right to Development (1986) art 1.
[2]Marshall and others v Canada communication 205/1986 (HRC 1991) para 5.5.
[3]Beydon and 19 other members of the association ‘DIH Mouvement de protestation civique’ v France communication 1400/2005 (HRC 2005) para 3.1.
[5] Para 7. See also UN Declaration on the Rights of Indigenous Peoples (2007) art 1; Saramawaka People v Suriname IACtHR (ser. C), No. 172 (IACtHR 2007).
[6] CESCR Poverty and the International Covenant on Economic, Social and Cultural Rights (2001) para 12. See also CESCR General Comment 4 para 9.
[8] CESCR Concluding observations, Ecuador, E/C.12/1/Add.100 (2004) para 12.
[9]Apirana Mahuika and others v New Zealand communication 547/1993 (HRC 2000) para 9.5. See also Länsman and others v Finland communication 671/1995 (HRC 1996).
[10]Social and Economic Rights Action Centre v Nigeria (SERAC) (2001) AHRLR 60(ACHPR 2001) para 55.
In certain circumstances, the right to participation goes beyond public debate and free elections to encapsulate a right to the effective participation of members of a community in decisions which directly affect them, including about policies and projects, such as evictions and the use of natural resources. Consultation is particularly called for with regard to decisions that affect minorities and indigenous peoples.
Comprehensive entry:
Article 25(a) of the ICCPR provides that ‘[e]very citizen shall have the right … to take part in the conduct of public affairs …’. The HRC has observed that ‘public affairs’ in article 25 of the ICCPR includes the ‘formulation and implementation of policy at international, national, regional and local levels’.[1] Participation can be either direct or indirect through elected representatives.
The HRC held in Marshall v Canada that ‘article 25(a) of the Covenant cannot be understood as meaning that any directly affected group, large or small, has the unconditional right to choose the modalities of participation in the conduct of public affairs.’[2] In Beydon v France, the applicants argued
that despite numerous calls by parliamentary groups, individual senators, and non-governmental organizations at the time of the National Assembly debates on the ratification of the Rome Statute in February 2000 not to invoke [a clause excluding war crimes from the jurisdiction of the ICC], France did not take into account either the authors' objections or the widespread public opposition expressed both directly and through their elected representatives to the French declaration under article 124.[3]
The HRC held that the applicants had failed to substantiate that their right to take part in the conduct of public affairs had been violated as they had participated in the public debate on the issue and acted through elected representatives.[4]
In certain circumstances the right to participation goes beyond public debate and free elections to encapsulate a right to consultation. General Comment 23 of the HRC provides that positive legal measures are required to ensure the ‘effective participation of members of minority communities in decisions which affect them’.[5] (See *minorities –right to participate in decision-making*, *indigenous peoples – consultation*). The CESCR has held that ‘[a]lthough free and fair elections are a crucial component of the right to participate, they are not enough to ensure that those living in poverty enjoy the right to participate in key decisions affecting their lives.’[6] Consultation is an essential element with regard to *forced evictions*.[7]
Consultation is particularly called for with regard to the use of natural resources. The CESCR has expressed deep concern over the fact that ‘natural resource extracting concessions have been granted to international companies without the full consent of the concerned communities’.[8] The HRC has noted that ‘the acceptability of measures that affect or interfere with the culturally significant economic activities of a minority depends on whether the members of the minority in question have had the opportunity to participate in the decision-making process in relation to these measures and whether they will continue to benefit from their traditional economy’.[9] The African Commission noted in a case against Nigeria that ‘in all dealings with the oil consortiums, the government of Nigeria did not involve the Ogoni communities in decisions that affected the development of the Ogoniland’.[10]
[1] HRC, General Comment 25 para 5. See also UN Declaration on the Right to Development (1986) art 1.
[2] Marshall and others v Canada communication 205/1986 (HRC 1991) para 5.5.
[3] Beydon and 19 other members of the association ‘DIH Mouvement de protestation civique’ v France communication 1400/2005 (HRC 2005) para 3.1.
[4] Beydon v France para 4.5.
[5] Para 7. See also UN Declaration on the Rights of Indigenous Peoples (2007) art 1; Saramawaka People v Suriname IACtHR (ser. C), No. 172 (IACtHR 2007).
[6] CESCR Poverty and the International Covenant on Economic, Social and Cultural Rights (2001) para 12. See also CESCR General Comment 4 para 9.
[7] CESCR General Comment 7 para 15.
[8] CESCR Concluding observations, Ecuador, E/C.12/1/Add.100 (2004) para 12.
[9]Apirana Mahuika and others v New Zealand communication 547/1993 (HRC 2000) para 9.5. See also Länsman and others v Finland communication 671/1995 (HRC 1996).
[10] Social and Economic Rights Action Centre v Nigeria (SERAC) (2001) AHRLR 60(ACHPR 2001) para 55.